But its argued that while there was no recognition of the equality of the people, there is one of the states, largely because they each have equal representation in the Senate. At least that's what the majority of court in the Shelby decision argued, and Steven says it formed the basis of their decision.
He disagrees with that argument and says the Constitution did not create equal sovereignty because the 3/5ths compromise tipped the balance of power towards the slave states - he calls it the slave bonus. While the states are still sovereign entities, they are not equal:
The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.
The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.
The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.
Note that he points out that one of the Civil War amendments was responsible for ending the slave bonus and providing equality to the states under the Constitution. That fits one of the basic arguments we make in class - at least in 2305.
This is also a question that touches heavily on items we hit in 2306 when we discussed the role of states in the constitutional system. Does the Constitution guarantee that they be treated equally? There is no explicit language making that case.
Here's more on equal sovereignty:
- Chief Justice Robert's Paean to . . .
- How did we get the principle of equal sovereignty . . .
- Do the states have the right to be treated equally?
- Blue states should get a refund under equal sovereignty.
- The Dignity of the South.
